The People, etc., respondent, v. Ruben Torres, appellant. (2010)

Argued-October 12, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered June 25, 2008, convicting him of rape in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The complainant's testimony that the defendant committed uncharged acts of sexual abuse and rape against her, from the time she was seven or eight years old, was properly admitted into evidence at trial as relevant to prove the absence of consent, a necessary element of the crime of rape in the third degree (see People v. Cook, 93 N.Y.2d 840, 841;  People v. Chaffee, 30 AD3d 763, 765;  People v. Medunjanin, 276 A.D.2d 719, 719;  People v. Wright, 266 A.D.2d 414, 414;  People v. Brown, 261 A.D.2d 410, 410-411;  People v. George, 197 A.D.2d 588, 589).   Further, the trial court providently exercised its discretion in determining that the probative value of this evidence exceeded the potential for prejudice to the defendant (see People v. Cook, 93 N.Y.2d 840, 841;  People v. Alvino, 71 N.Y.2d 233, 242;  People v. Romero, 309 A.D.2d 953, 954).   Moreover, the court's limiting instructions obviated any potential prejudice by ensuring that the jury did not employ the evidence for an improper purpose (see People v. Ortiz, 273 A.D.2d 482, 483;  People v. Padilla, 245 A.D.2d 310, 310;  People v. Green, 170 A.D.2d 530, 531).

Also without merit is the defendant's contention that the expert testimony on child sexual abuse syndrome was improperly admitted to prove the occurrence of the crimes charged.   The expert testimony was properly offered for the purpose of helping to explain the complainant's behavior after the rapes, which was not within the knowledge of the average juror (see People v. Carroll, 95 N.Y.2d 375, 387;  People v. Taylor, 75 N.Y.2d 277;  People v. Cintron, 75 N.Y.2d 249, 267;  People v. Keindl, 68 N.Y.2d 410, 422;  People v. Gillard, 7 AD3d 540, 541;  People v. Califano, 216 A.D.2d 574, 575;  People v. Burgess, 212 A.D.2d 721, 721).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

DILLON, J.P., FLORIO, ANGIOLILLO and DICKERSON, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court